VINOD KUMAR CHAMARIA Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) These three applications have been heard together. In all the three cases the facts are common. The petitioner's case is that he is the managing director of the Katihar Jute Mills (in the State of Bihar) and resides in Calcutta. Three petitions of complaint were filed against him for violation of certain provisions of the Additional Emoluments (Compulsory Deposit) Scheme, 1974, read with Ss. 6(2) (b), 23 and 14 of the Additional Emoluments (Compulsory Deposit) Act, 1974, by Shri V.B. Singh, Enforcement Officer in the office of the Regional Provident Fund Commissioner, Bihar, on the 11th, September 1975, before the Chief Judicial Magistrate, Patna, giving rise to three cases, viz., Nos. 950(M)/75, 951 (M)/75 and 952 (M)/75. Criminal Miscellaneous Nos. 433/76, 434/76 and 435/76 arise out of the aforementioned three cases, respectively. The period for which the additional dearness allowances deducted from the employees were not paid in the manner prescribed under the Additional Emoluments (Compulsory Deposit) Act are different in the three cases. It is, however, not necessary to state all these facts in greater detail. On receipt of the complaints, the Chief Judicial Magistrate took cognizance under paragraph 7 of the Additional Emoluments (Compulsory Deposit) Scheme, 1974, read with Ss. 6 (2) (b), 23 and 14 of the Additional Emoluments (Compulsory Deposit) Act, 1974, on the 11th September, 1975, in all the three cases and issued summonses fixing the 25th October, 1975, for appearance of the accused. The petitioner did not appear on the 25th October, 1975. A petition appears to have been filed on behalf of the complainant to issue a warrant of arrest against the petitioner but, as the Service report had not come by then, the Court below fixed the 29th, November, 1975, as the next date in the case. On the 29th, November, 1975, again the petitioner did not appear. Another petition was filed on behalf of the complainant to issue a non -bailable warrant of arrest against the petitioner The court below issued a bailable warrant of arrest against the petitioner fixing the 20th December, 1975. On the 20th. December, 1975, the petitioner again did not appear in person but a petition seems to have been filed on his behalf to recall the warrant of arrest and fix a date after a month for his appearance in Court. It was stated in the said petition that his non -appearance on the 29th November, 1975, was not intentional rather it was beyond his power to reach the Court. The Court below, on his request, fixed the 31st. January 1976, for appearance of the petitioner in Court.

(2.) It was contended by Shri S. B. Sanyal, Learned Counsel appearing on behalf of the petitioner in all these cases, that the court below was wrong in saying that the petition under Sec. 205, Code of Criminal Procedure, was not maintainable at this stage. Learned Counsel submitted that exemption can be allowed even in a case where processes had been issued in the first instance including warrant of arrest. According to Learned Counsel, the provisions contained in Sec. 205 and Sec. 540A of the old Code (Section 317 of the new Code) were co -extensive for grant of exemption and merely because warrant had been issued, the Court did not become functus officio to grant the said relief. Reliance in this connection was placed on a large number of decisions, viz., (1) Abdul Hamid V. King Emperor (A.I.R. 1924 Pat 46); (2) Subba Rao. V. The King ( : A.I.R. 1951 Pat 405); (3) In re Ummal Hasanath (A.I.R. 1947 Mad 433); (4) Sultan Singh Jain V. The State ( : A.I.R. 1951 All 864); (5) Indra Devi V. Sarnagat Singh ( : A.I.R. 1955 P&H 81); (6) Joy Singh Rajput V. Bachharaj Dugar (A.I.R. 1957 Ass 148); (7) Kursedji Wookerji Bananji V. State of Mysore (A.I.R. 1954 Mys 181); (8) Dhiria V. Jainarain ( : A.I.R. 1970 Raj 102) and an unreported decision of this Court in (9) Criminal Revision no. 172 of 1964 (Sukhdeo Prasad Singh V. Gouri Shankar Modi) decided on the 13th of April, 1964.

(3.) In the case of (1) Abdul Hamid (AIR 1924 Patna 46) the accused had been arrested without or after the issue of warrant of arrest and himself had not made any prayer to be represented by a pleader. In the case of (2) Subba Rao ( : AIR 1951 Pat 405), it appears that an observation was made that the provisions of Sec. 205 were applicable to a case where summons and not warrant of arrest was issued in the first instance. In the Madras case ( : AIR 1947 Mad 433) it was held that Sec. 205 of the Code was applicable to cases in which the Magistrate had issued summons in the first instance and not where the accused had been arrested without or after the issue of the warrant. It appears that in that case the accused had been arrested without a warrant. In the case of Indra Devi (1951 All 864) it was held that Sec. 205 of the Code applied to a case where summons had been issued by a Magistrate under Sec. 204 of the Code. In the Punjab case also (1955 Punjab 81) a similar proposition was laid down. In, AIR 1957 Ass 148 (Joy Singh Rajput's case) it was further held that Sec. 205 of the Code does not preclude the Court from granting exemption to the accused of his personal appearance merely because a warrant had been issued in the first instance. In the Mysore case (1954 Mysore 181) it was held that Sec. 205 is not exhaustive of the conditions under which exemption can be granted to an accused from appearance in Court and absence of summons in the first instance is not an impediment from exemption being allowed. The issue of summons or warrant to the accused in the first instance is not the criterion. It was further held that it would be unreasonable to reject such applications only because the summons was not issued to the accused. Exemption had been refused in that case on the ground that warrant, and not summons, had been issued to the accused for his appearance.